Free Speech

N.Y. Prosecution and Lawsuit Over Sending Baptist Anti-Catholic Leaflet + E-Mail

Criminal charges were eventually dropped, and the civil lawsuit has just been thrown out.

|The Volokh Conspiracy |

From Trombetta v. Kruse,  2019 WL 6140052, decided Tuesday by New York state Judge Sabrina B. Kraus:

Plaintiff and defendant live in the same building. Before October 2015, they were only casually acquainted. Plaintiff considered them to be acquaintances, defendant appears to have considered them to be friends. Plaintiff is an artist who specializes in painting outdoors. Defendant is a paralegal at Kaye Scholer.

[Defendant] anonymously mailed a religious pamphlet to plaintiff entitled "Last Rites" … through the mail room at Kaye Scholer. The envelope was addressed by hand in blue ink, the return address was marked KS [with Kaye Scholer's address]. The pamphlet, also referred to as a tract, shows a cartoon depiction of a catholic who is sent into the "lake of fire" to "burn in hell" for practicing as a catholic, instead of following the version of Christianity promoted by the pamphlet which is evangelical Baptist. The tract urges the reader to reject Catholicism, or be barred from heaven.

The tract, which is published by Chick Publications, is authored by Jack Chick. The company asserts that it has sold over 150 million copies in over 100 languages, and that ten percent of the publications are aimed against other religions including Mormonism, Islam, Catholicism, and Buddhism.

Plaintiff testified that she became very fearful when she received the tract. Plaintiff testified that the date the envelope was postmarked which was October 15, 2015, was significant to her, because she was on the Staten Island Ferry when it crashed on October 15, 2003. Plaintiff suffered extensive injuries as a result of the crash, and was awarded $813,000 in a lawsuit brought to compensate her for her injuries.

Plaintiff testified that she was frightened by the tract, in part because of violent incidents that took place around the world in 2015.

Plaintiff eventually discovered that Defendant had mailed her the pamphlet.

Defendant testified that she mailed up to 50 pamphlets from the offices of Kaye Scholer on that date, including to her own family members.

The parties engaged in email correspondence about the tract in January 2016.

In the emails, defendant apologized for having offended plaintiff. However on January 19, 2016, defendant wrote plaintiff an email that included the following statements:

"We are all going to die (you, me and every member of my family). Where we spend eternity will be determined by a decision we make here on earth—not by how good a person we think we are, or by how many good things we have done or if we believe that we have evolved or ascended to a higher spiritual level….

"Do you recognize yourself as a sinner and understand that there is nothing that you can do to save yourself? ….

"If you understand and believe these things and if you recognize yourself as a sinner in need of a savior, then if you believe on the Lord Jesus Christ thou shalt be saved.

"I have accepted the Lord Jesus Christ as my savior and I know that when I die I will go to heaven. My family does not believe and, if any of them were to die tomorrow, they would not go to heaven but to hell. I sent them tracts because I do not want them to go to hell. I want them to go to heaven. It is what I want for you too."

Plaintiff turned over the tract and the emails to the police, and on January 27, 2016, defendant was arrested and charged with aggravated harassment in the second degree pursuant to PL 240.30(1)(a). A temporary order of protection was issued by Criminal Court (Watters, J) on March 15, 2016 in favor of plaintiff. The temporary order of protection had an expiration date of September 14, 2016. On May 2, 2016, the criminal court action was dismissed based on the assistant district attorney's representation that the People could not prove the case beyond a reasonable doubt, and the temporary order of protection was extinguished.

During this period, plaintiff also experienced interference with her emails and phone. Plaintiff believed that defendant was the cause of these disturbances.

Plaintiff Failed to Establish Any Cause of Action or Prove Any Damages

Under New York law, there is no civil cause of action for harassment of the type alleged by plaintiff.

The tort of intentional infliction of emotional distress has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. Liability is only established where the conduct is so outrageous in character, and extreme in degree, as to exceed all bounds of decency, and be utterly intolerable in a civilized community.

The First Amendment to the United States Constitution prohibits the courts of this State from evaluating the religious beliefs of a church or individual.

While the court understands why the plaintiff found the tract and email disturbing, the court does not find that the conduct rose to the level of intentional infliction of emotional distress.

In regards to any alleged claim for personal injury, plaintiff failed to offer any competent medical expert to establish that she was emotionally, physically or psychologically injured as a result of defendant's conduct….

Defendant Failed to Establish a Claim for Malicious Prosecution

The elements of a claim for malicious prosecution are (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice.

It is well settled that a civilian who makes a complaint to the police or furnishes information to law enforcement authorities, who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution.

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  1. Targeted harassment MAY be unprotected speech. I say “may” because it has never been resolved explicitly but appears to be the theory that renders Title VII harassment law constitutional.

    That’s the hard part of the case.

    The easy part of the case is that this IS targeted harassment. The targeting is clear- this was specifically directed to plaintiff. And so is the harassment- I can’t think of a greater threat than being told you will be eternally tortured.

    And no, directly threatening other specifically targeted people with eternal torture isn’t freely exercising your religion, any more than any other form of coercion to force your acquaintances to join your religion is.

    1. Dilan Esper,

      Would you agree that standard doctrine limiting true threats to ones that the threatener can plausibly carry out applies here?

      If so, how exactly would this alleged threatener carry out this alleged threat? What exactly makes you believe he plausibly could here?

      And if you do believe this, I’s like to ask a follow-up question. Suppose a State also believes it as part of its official legal doctrine. Would such an official belief be consistent

      1. Sorry, would such a state legal doctrine be consistent with the First Amendment?

        1. I wouldn’t uphold liability as a threat (I agree this doesn’t meet the definition). I would uphold liability as targeted harassment.

          1. What if people find your comment replies threatening or injurious? I mean, you’re clearly targeting them, since you’re responding directly to them. But I’m sure it’s all a matter of degree, and you are clearly on the right side of the line.

            1. No, I am not targeting them. Posting on the Internet =/ mailing to someone’s address.

              1. Online harassment laws would disagree with this line of logic.

          2. Liability is enforced via law. “Congress shall make no law…”

            We are done.

            1. That’s not how constitutional law works. Douglas and Black lost all those cases.

              1. What cases? That espousing religion makes people feel threatened so they can sue?

    2. Specific? Since when is sending a tract to 50 people “specific” targeting?

      C’mon man!

      1. As long as she selected out those 50 people, of course it is targeted harassment.

        It’s the Bill Cosby defense! “I am not a harasser- I did it to 80 women, so it wasn’t targeted!”

        1. Why stop at 50? Why not 500?

    3. Anti-harassment laws (which are mostly confined to the employment or other economic activities) derive their authority from the ability to regulate interstate commerce. Telling a woman she’s not feminine enough to be promoted in the workplace: illegal. Saying the same stuff without have a work relationship: legal, unless it’s done repeatedly or is actually threatening (what you’ve identified as threatening is not).

      1. Perhaps if plaintiff were Mary Worth she could make it work, but I don’t think even that would work.

      2. That’s not consistent with current commerce clause precedent.

        1. … that IS current precedent.

        2. I am unaware of SC precedence allowing “I feel bad” censorship to escape contained interstate commerce domains like business and public education, into the wild.

          1. Mailed harassment is clearly within both the Commerce Clause as interpreted by Wickard and other cases (the mail touches interstate commerce) and the Post Office Clause.

            Or do you think the mail fraud statute is unconstitutional?

            1. Mail fraud != harassment through mail. On the criminal side, most mail harassment that isn’t already illegal otherwise (actionable threats, stalking, violating restraining orders) isn’t made illegal by the federal government but by the states. On the civil side it mostly pertains to workplace discrimination, which still derives its authority from the Commerce Clause.

              1. For commerce clause purposes (not First Amendment, which I agree is a different issue) mail fraud can be regulated for the exact same reason mailed harassment can.

    4. “directly threatening other specifically targeted people with eternal torture isn’t freely exercising your religion”

      She was not threatened, she was being warned against “danger”. You might think that “danger” is overwrought or imaginary but it is not a threat any more than warning that if you have unprotected sex you will get AIDS.

      Proselytizing is protected by the 1A. That is all this was.

      1. I don’t think “prosletyzing” is always protected. Let’s say the same person targets you, Bob from Ohio, every day because he thinks you belong to the wrong religion. Every day he insults you, says he hopes you will burn in hell, follows you shouting condemnations. He hangs outside your workplace every day, and outside your house every morning.

        Is that protected by the First Amendment? Or is it targeted harassment?

        1. “I don’t think “prosletyzing” is always protected.”

          Few things are “always” protected. I have a right to protest but not climb on to the White House fence to do it.

          You are not describing the case here.

          It was one mailing. Neither was it in person.

          Even if it was in person, it would still be protected as both freedom of religion and freedom of speech. “God will punish you” is not “fighting words”.

      2. That is long-established religious orthodoxy.

        Congress shall make no law.

        We are done.

        1. Yes, if only the authors of the first amendment had stopped there.

    5. re: harassment (by the defendant)

      The only proper response is Thbbbttt!!!

      It is not harassment to tell you that you will die violently and painfully if you drive too fast on a crowded highway. It does not matter how graphic I am in that description. I am not threatening you in any way, merely describing the consequences of your own actions.

      Eternal torment is a little different because you probably disagree about the inevitability of the consequences but the person making the description is not threatening to do or cause anything.

      To be blunt, the plaintiff’s “fears” were objectively unreasonable.

      1. “It is not harassment to tell you that you will die violently and painfully if you drive too fast on a crowded highway.”

        If it is presented to a listener who doesn’t want to hear it, in a context where it will be taken as threatening or injurious, it could be.

        1. Wow, there’s a lot of work being done by “in a context where it will be taken as threatening or injurious.”

          1. Not in this case. It’s pretty clear this person sent a creepy threat that the plaintiff would eternally burn in hell. No reasonable person would ever communicate in this way.

            1. “No reasonable person”

              You are assuming the conclusion.

              It is a common [not universal] religious view that non-believers will suffer eternal damnation. You don’t like religion so…

              1. No, I think may religious communications are perfectly reasonable despite my disagreement. For instance, television preachers saying that Jesus is the way, the truth, and the life, or even asking for donations to the church, all seems totally reasonable. So does the vast majority of preaching from the pulpit. Heck, so does leafleting a neighborhood or parking lot with Bible verses.

                I think sending a creepy mailing to your ostensible friend threatening the friend with eternal torture is not reasonable. (And not merely because I find the underlying belief unreasonable- although you are correct that I actually think Christians who believe in this version of hell are the moral equivalent of Stalin and Hitler.)

                1. I actually think Christians who believe in this version of hell are the moral equivalent of Stalin and Hitler.

                  I’m as stridently antitheistic as they come, but I find it impossible to believe that you actually mean this.

                  1. I believe God might do something = murdering millions!

                    Seems reasonable.

                2. “I actually think Christians who believe in this version of hell are the moral equivalent of Stalin and Hitler”

                  This is an extremely disturbing statement, and shows extraordinary bias and bigotry towards religion, to the point where you appear to consider it justifiable to imprison or even execute those who hold firm Christian or Islamic beliefs.

                3. Dilan, you state that leafleting a neighborhood or parking lot with Bible verses would be okay with you. So which Bible verses would be okay? There are many verses within the Bible that actually buttress the arguments of the offending comic book. Jesus, himself, talked more about hell then anyone else in the Bible and warned people about not going there. I suggest that you pick up a New Testament and see what He did say. He said much more then “Judge not lest ye be judged.”

            2. On the contrary, a great many perfectly reasonable people communicate this way every day. I don’t agree with them and I don’t like it but it is not an actionable threat by any stretch of the imagination.

              And while it could arguably become “harassment” if the behavior went from proselytizing to something meeting the legal definition of stalking, the behaviors described above are way short of that line.

    6. “The easy part of the case is that this IS targeted harassment.”

      This may very well be the stupidest thing on the internet.

      1. You certainly didn’t establish why.

    7. The even easier part is that this is not “targeted harassment” (whatever that might mean). NY (pen 240.26) criminalizes:

      He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

      Since this wasn’t a repeated action, this isn’t covered by New York’s harassment law.

  2. As I understand it, the plaintiff is claiming the defendant mailed her a single religious pamphlet. The problem here is that there is no threat, and general religious preaching including saying sinners and nonbelievers Will go to hell is clearly protected by the First Amendment. Her subjective feelings of feeling threatened by it can no more be a basis for legal action then white people’s subjective feelings of feeling threatened by black people sitting in the front of the bus.

    She also alleges that he did additional conduct including interfering with her internet access and email account. I’m not sure if she has much evidence for these allegations. But if they are true, then this would be conduct rather than speech, wholly separate from her dislike of his religious tract, and quite likely actionable.

    1. I suspect that Plaintiff is, not to put too fine a point on it, insane. I know even paranoids have enemies, but the likelihood that Defendant specifically chose the anniversary of a ferry accident to target her, and has been messing with her emails and phones is more than a little far-fetched. Plaintiff’s views on chemtrails, microwaves and reptiloids might be illuminating.

        1. She made bank on that claim: https://www.nydailynews.com/news/judge-grants-staten-island-ferry-crash-victim-annamarie-trombetta-surprising-813g-article-1.461608

          $813,408 for damages, even though she made max $11,000 per year from the art she claims she couldn’t do over the past six years. Fast forward to now and she’s still making art like she used to. She’s even sued a couple on eBay because they misidentified her as the painter of a 1972 work. It’s been mostly dismissed but one claim is going forward.

          “Trombetta testified she had tried many alternative treatments for her chronic pain, including “Brazilian energy healers.””
          Hmm…

          1. This lady has to know somebody important or is really dedicated to getting her name everywhere. She’s pretty much a nobody but she made ridiculous money on that claim, she’s been interviewed by the WSJ about “fancy sugar cubes”, has led an art workshop in Tuscany (after she couldn’t do her art anymore, of course), and won a free trip to the Hague, among other numerous art-related things. She positively infests the internet.

            1. “and won a free trip to the Hague, among other numerous art-related things. She positively infests the internet.”

              She was bitten by a radioactive thumb drive and now has the powers of a computer virus.

      1. Plaintiff “insane,” but no comment about defendant?

    2. It sounds like she also sent two emails: an apology and one that backed right out of it. Still not actionable, obviously.

  3. The Jack Chick tract against the evils of Dungeons and Dragons, called Dark Dungeons ….some of the best ironic camp.

  4. A more general question to people who think this is an actionable threat.

    A black person sits in the front of the bus, right next to a white segregationist, maybe tries to start a conversation with him. Can the segregationist sue? After all, he was specifically targeted, just like here. He was the recipient of unwanted communication, just like here. He feels threatened by the approach and the communication, just like here.

    What’s the difference? Is it that while it’s not OK to find black people threatening, it is OK to find religious people threatening?

    1. Not based on those facts alone.

      But if the communication contains content that could specifically be taken as threatening and expressing a desire that the segregationist suffer torture, it could be.

      It’s the combination of unwanted communication, specific targeting, and harassing content that gets this over the top.

      1. That’s a non responsive answer. The hypo says the segregationist took it as threatening. Of course it could be taken as threatening. It was. Let’s further stipulate that the black person gave a glance that a white police officer today would testify represented a “threatening look.”

        1. Heck, let’s even stipulate the black person wore baggy, threatening-looking clothes.

        2. The issue isn’t simply that someone subjectively takes it as threatening.

          It is quite objectively unreasonable to send a creepy targeted communication threatening a specific person with eternal torture.

  5. How did the law firm handle the misappropriation of its name and the diminution of its reputation? Is this paralegal (or legal secretary) still employed?

  6. You should make sure not to proselytize someone without first making certain that (i) nothing bad happened to them in the past on a date related to the proselytization, and (ii) nothing violent has happened in the world in the past year. Other than that, you’re kosher.

    1. How about religious people stop thinking that everyone in the world who rejects their beliefs does so because they are too stupid to have ever heard about them?

      It’s not like one on one “prosletyzation” is some great social good. If it’s done in a non-threatening manner, sure. I once had a Mormon lawyer at a lunch try to broach the subject. That was fine! He wasn’t threatening me, we were in a casual situation, there was nothing creepy or coercive about the thing.

      But churches have websites, and television shows, and they place advertisements. There’s plenty of ways to “spread the Gospel” without being an arrogant asswipe who sends out threatening communications promising eternal torture.

      1. Humanity has been down that path.

        The solution is to deny government power over speech and religion. Do not give holes for control of speech and religion. You are not learning from history.

        1. Every government, including ours, has some power over speech and religion. Many societies are nonetheless reasonably defined as free.

          The world won’t come to an end if we impose time place and manner restrictions on prosletyzation.

          1. ” time place and manner restrictions on prosletyzation”

            It was one mailing. You say that one mailing was improper. So, your approved amount of prosletyzing is none.

            A complete ban is not a “time place and manner restriction”, its a ban.

            1. Not to mention, there isn’t really any way to apply time or place restrictions to proselytizing through the mail.

            2. This isn’t a complete ban. Plaintiff is seeking a pretty narrow rule that wouldn’t even apply to most mailed religious communications.

              1. My mistake. It only bans “creepy” things you don’t like.

          2. It is, however, a step down the slippery slope, with no step being the end of the world, until you find yourself sitting there with a dictator.

            You will not find me a supporter of time and place restricions, like “free speech zones”. That’s an enemy of freedom, and a wrongheaded decision.

      2. But churches have websites, and television shows, and they place advertisements. There’s plenty of ways to “spread the Gospel” without being an arrogant asswipe who sends out threatening communications promising eternal torture.

        You are being completely disingenuous, Dilan. “If you don’t repent you’re going to spend your eternal afterlife in torment” is not a “threatening communication” any more than “If you don’t stop your use of fossil fuels then we’re all going to be wiped out by climate change” is a “threatening communication.”

  7. The law cited requires “a threat to cause physical harm”.

    I don’t see a threat in the hereafter to be a physical threat, and am not aware of any legal authority that states that a threat in the afterlife is a physical threat. Clearly, a criminal complaint should never have been entertained or pursues in the first place. But this is New York City.

    Likewise, I don’t know how a threat in the hereafter can be considered to be a physical threat, so the civil case should have been thrown on the first MTD.

  8. I agree with the general rule that telling someone they’re going to go to hell for being an unbeliever it’s a threat. It’s just being a jerk.

    But one part of the complaint really confused me. “Plaintiff testified that the date the envelope was postmarked which was October 15, 2015, was significant to her, because she was on the Staten Island Ferry when it crashed on October 15, 2003.” How on Earth is that meant to show that it was exceptionally threatening or harassing? Is everything that happens on October 15 automatically scarier? Even if the other person has absolutely no reason to think of October 15 as a scary day? Maybe you could make an argument for a kind of universally bad day, like 9/11. But even then, it would be really hard to claim that an otherwise nonthreatening communication becomes threatening just because it was postmarked (not even received!) on 9/11.

    1. *isn’t a threat. Sheesh.

    2. I agree that the October 15 stuff is completely nuts.

  9. Question. A doctor warns a diabetic that if he doesn’t change his lifestyle, he may suffer great pain and die. Suppose he anonymously mails a pamphlet to a diabetic neighbor saying this.

    Threat? Exactly the same circumstances would seem to apply. He is saying, pretty much as the religious prosyletizer is, that if he doesn’t do what the doctor tells him to do he will suffer great pain and death.

    If the plaintiff here is justified in feeling threatened by the religious prosyletizer, why isn’t the diabetic neighbor be equally justified in feeling threatened by the doctor? If one has a legitimate cause of action, why wouldn’t the other?

    1. “Question. A doctor warns a diabetic that if he doesn’t change his lifestyle, he may suffer great pain and die. Suppose he anonymously mails a pamphlet to a diabetic neighbor saying this.”

      Montana had a series of very graphic anti-meth billboards a few years ago. It’s a good thing they didn’t mail out anti-meth pamphlets, I guess. And don’t get me started on the anti-drunk driving films they showed us in Driver’s Ed.

      And those are a lot scarier than threats like ‘If you don’t worship Cthulu, your afterlife will be spent being constantly bitten by poisonous asps’, because they are true: if you use meth or drive drunk, bad things probably will actually happen to you.

      I’d think a prerequisite to claiming you are harmed by bad things happening in the afterlife should be that you were, in fact, a devout enough believer in the religion in question that you actually believe you will be harmed.

  10. I again want to make sure that people who thing government has a compelling interest in stopping the proselytizer also have a compelling interest in stopping the doctor. They’ve done exactly the same conduct. The doctor, exactly like the preacher, has threatened the listener with extreme pain and death unless the listener does what the doctor says. If the preacher is objectively evil for saying this, then so is the doctor. And if threatening people with pain and death for not acting as you tell them to is not a genuine or legitimate part of the exercise of religion, surely we can all agree that it could not possibly be a genuine or legitimate part of the practice of medicine.

  11. Choose reason. Every time.

    Especially over sacred ignorance or dogmatic intolerance. Most especially if you are older than 12 or so. By then childhood indoctrination fades as an excuse for gullibility, backwardness, bigotry, superstition, and ignorance. By ostensible adulthood it is no excuse.

    Choose reason. And education, tolerance, science, modernity, inclusivity, freedom, and progress. Avoid ignorance, backwardness, bigotry, dogma, insularity, superstition, and pining for good old days that never existed.

    Choose reason. Every time. Be an adult.

    Or, at least, try.

    Otherwise, you might become goofy enough to send dozens of kooky messages by mail and get fired for being oblivious enough to send them using your employer’s address and mailroom.

  12. Is it a crime to discourage people from getting lakefront property, especially if the lake in question is a lake of fire?

  13. I’m curious about the defendant/Baptist’s suit against the police for arresting him over what was clearly protected speech. Do the cops get qualified immunity?

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